The employee suffered two acts of racial discrimination at work, which
the employment tribunal held amounted to a breach of contract. Although
initially investigated by the employer, the HR manager ultimately failed
to investigate the employee's grievance.

The employment tribunal held that the employee had affirmed the breach
of contract because the last act of mistreatment, the HR manager's
failure to investigate the grievance, was some six weeks before the
employee's resignation.

Langstaff P emphasised that the matter of time is not to be taken in
isolation. Rather, the principle is whether the employee has
demonstrated that they have made a choice, which they will do by
conduct.

They will do so, generally, by continuing to work in the job or by
communications which show that they intend the contract to continue. But
the issue is essentially one of conduct and not of time.

Daniel Barnett is a barrister at Outer Temple Chambers, with over 15 years' experience defending companies facing employment tribunal claims and associated commercial disputes. He is listed as a leading employment barrister in the ‘Legal 500′, and described in the Times Law Supplement as having “carved out a strong reputation”.

Daniel regularly advises and represents large and small businesses in discrimination claims, TUPE problems, team moves, removal of confidential business information, and unfair dismissal disputes. He has been appointed as employment law advisor to Acas since 2004, and is the author or co-author of seven legal textbooks.